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From the field

18 July 2010: In dangerous precedent, Israel revokes residency of four Palestinians affiliated with Hamas from East Jerusalem and acts to forcibly transfer them

According to media reports, Israel is currently taking action to forcibly transfer four Palestinian residents of East Jerusalem from the city because they are members of Hamas. The four persons about to be expelled are Muhammad Abu Tir, 60, Muhammad Tutah 41, Ahmad 'Atun, 42, and Khaled Abu 'Arfah, 49. The first three were elected to the Palestinian Legislative Council in January 2006, after running on the list of the Change and Reform Party, which is affiliated with Hamas. Abu 'Arfah served as minister for Jerusalem affairs in the Hamas government headed by Isma'il Haniyeh.

As Palestinian residents of East Jerusalem , the four had Israeli permanent-residency status. This status was revoked in June 2006 by the interior minister at the time, Roni Bar-On, after the four did not meet an ultimatum to resign their political posts in the Palestinian Authority. The minister stated that their status was being revoked because the four had breached their duty of allegiance to the State of Israel.

The revocation had no immediate practical implications as three of the four were being held in an Israeli jail. They were arrested shortly after the abduction of the Israeli soldier Gilad Shalit in June 2006, in the wave of arrests of Palestinian parliamentary members affiliated with Hamas.

A few hours after Abu Tir was released from prison, on 20 May 2010, he was summoned to a police station and ordered to leave East Jerusalem and Israeli territory within one month. T utah , too, was summoned to a police station within a few hours of his release, on 2 June 2010, and ordered to leave Jerusalem and Israel within one month. The next day, 'Atun and Abu 'Arfah, who had been released from prison in September 2008 and November 2009, respectively, were also summoned and ordered to leave within one month. On 25 June 2010, Jerusalem police arrested Abu Tir and filed an indictment against him for staying illegally in Israel . The state is seeking to have Abu Tir remain in custody until the end of the legal proceedings, and has stated that, if he is convicted, it would demand a prison sentence. On 1 July 2010, following Abu Tir's arrest and shortly before the new ultimatum expired, T utah , 'Atun, and Abu-'Arfah went to stay at Red Cross headquarters in East Jerusalem.

Following these revocations of residency status in 2006, a petition objecting to the decision was filed with the Israeli High Court of Justice. The petition is still pending. On 20 June 2010, the Supreme Court president, Justice Dorit Beinsich, denied an application for an interim order enjoining the expulsion proceedings until decision on the petition is reached. Hearing of the petition is scheduled for September 2010.

Revocation of a person's status as a permanent resident in a country and forcibly transferring him from his place of residence naturally infringe numerous human rights. The person is separated from his home, family, community, and sources of livelihood. This is true of persons who acquire permanent residency following immigration and are deported to their country of origin. It is doubly fraught when the persons are uprooted from their homeland and are left stateless. A number of legal tools - in intern ational law and in domestic law, including that of the State of Israel - protect these rights. Special tools exist to reduce, to the extent possible, the phenomenon of stateless persons, in part by restricting the ability of states to revoke the status of persons that will be left stateless.

In addition, with respect to residents of East Jerusalem , the rules of intern ational humanitarian law also apply. Following Israel 's occupation of the West Bank in 1967, East Jerusalem was annexed to the jurisdictional area of the Jerusalem Municipality , in breach of the intern ational legal principle prohibiting unilateral annexation. Subsequently, Israel imposed Israeli law and administration on East Jerusalem , yet this does not diminish the rights of Palestinian residents of the city under the laws of occupation. These laws forced transfer of residents of the occupied territory, including within the territory itself, except in exceptional, narrowly-defined cases. For security reasons, the occupying power is allowed, at most, to demarcate the person's permitted place residence for a specific period of time, inside the occupied territory. In no circumstances is deportation allowed.

The decision to revoke the permanent residency of the four Palestinians raises special concern. Since annexing East Jerusalem , Israel has treated Palestinians residents of the city as if they hold permanent residency permits under the Entry into Israel Law. For years, the state has revoked this status from persons who it claims have moved their center of life to another country . This is the first time that residency has been revoked on the explicit grounds of lack of allegiance to the state.

In the past, the Defense (Emergency) Regulations of 1945, from Mandatory times, allowed the deportation of residents and citizens of the state for security reasons. This draconian provision was repealed during the first government of Menachem Begin. The present case is a dangerous precedent, as the interior minister used his general authority to revoke residency under the Entry into Israel Law to enable the security deportation sanction that Israel had nullified more than thirty years ago.

The grounds given for the revocation - lack of allegiance to the State of Israel by participating in the political institutions of the Palestinian Authority - aggravate the gravity of the action. Residents of East Jerusalem , as residents of occupied territory, do not have a duty of allegiance to the occupying power. A number of rules of intern ational law (among them article 45 of the Hague Regulations and article 68 of the Fourth Geneva Convention) are intended to prevent treatment of an occupied population as if it had a duty of allegiance to the occupying power, and to ensure that such duty is not imposed on it. In the present case, Israel interprets participation in elections for the Palestinian national institutions as lack of allegiance, even though these elections took place in East Jerusalem, in accordance with the Oslo agreements, under Israeli law implementing these agreements, and under intern ational supervision. Imposing the harsh sanction of forced transfer for participating in the political life of the society to which a person belongs seriously infringes the person's, and his community's, civil rights, in addition to infringing other rights that result from removing a person from his place of residence.